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No. 14-981
In the

Supreme Court of the United States


ABIGAIL NOEL FISHER,
Petitioner,
v.
UNIVERSITY OF TEXAS AT AUSTIN, et al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
BRIEF OF AMICUS CURIAE
CALIFORNIA ASSOCIATION OF SCHOLARS
IN SUPPORT OF PETITIONER
JOHN C. EASTMAN
Counsel of Record
ANTHONY T. CASO
CRISTEN A. WOHLGEMUTH
Center for Constitutional
Jurisprudence
c/o Chapman University
Dale E. Fowler School of Law
One University Drive
Orange, CA 92886
(877) 855-3330
jeastman@chapman.edu
Counsel for Amicus Curiae
California Association of Scholars

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QUESTION PRESENTED
Whether the Fifth Circuits re-endorsement of the
University of Texas at Austins use of racial preferences in undergraduate admissions decisions can be
sustained under the Equal Protection Clause of the
Fourteenth Amendment and this Courts decisions interpreting that clause, especially Fisher v. University
of Texas at Austin, 133 S. Ct. 2411 (2013), and
whether the Court should develop evidentiary presumptions to help plaintiffs smoke out the pretextual
use of the diversity rationale for race-preferential admissions.

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TABLE OF CONTENTS
QUESTION PRESENTED.............................................. i
TABLE OF AUTHORITIES.......................................... iv
INTEREST OF AMICUS CURIAE............................... 1
SUMMARY OF ARGUMENT ....................................... 1
ARGUMENT .................................................................... 5
I.

Prior to Fisher I, Grutter-Deference Was


Interpreted To Insulate Colleges and Universities From Liability Despite Strong Evidence
That Concern Over the Pedagogical Benefits
of Diversity Was Often a Pretext. .......................... 6

II. Because Much of the Pressure for RacePreferential Admissions Policies Comes From
Outside Colleges and Universities, Those
Policies Should Not Be Entitled To Deference. . 11
A. State legislatures, the federal government,
private foundations, alumni donors and
student groups motivated by their own view
of social justice or by an old-fashioned racial
spoils system are among those who vie to
influence admissions policies.......................... 11
B. Federally-designated accrediting agencies
are especially inclined toward pressuring
individual colleges and universities toward
greater racial preferences. .............................. 14
III. The Higher Education Industry Is An Unlikely
Recipient of Deference On Issues of Race.
Instead, Higher Educations Long History of
Race Discrimination Combined with Its Modern

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Tendency Toward Marching In Lockstep
Should Counsel Extra Judicial Caution. ............ 22
IV. If Alone Among Industries Higher Education
Should Receive Grutter-Deference, Then Alone
Among Industries It Should Be Subject to
Explicit Counterweights In the Narrow
Tailoring Phase Of The Analysis In Order To
Prevent the Diversity Rationale From Being
Too Easily Used As a Pretext. .............................. 31
A. Those institutions that use the diversity
rationale as a pretext should be not given
a second chance to conform themselves to
the constitutions mandate. ............................ 31
B. Those institutions that have been pressured
or given incentives to engage in racepreferential admissions policies should bear
the burden of proving by clear and convincing evidence that they would have tailored
their admissions standards in exactly the
same way even in the absence of that
pressure or incentive........................................ 32
CONCLUSION............................................................... 35

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TABLE OF AUTHORITIES
Cases
Browder v. Gayle,
352 U.S. 903 (1956) ..................................................9
Brown v. Board of Educ.,
347 U.S. 483 (1954) ..................................................9
Fisher v. University of Texas,
133 S. Ct. 2411 (2013) (Fisher I)................. passim
Fisher v. University of Texas,
631 F.3d 213 (5th Cir. 2011), vacated and
remanded, 133 S. Ct. 2411 (2013) ...........................3
Grutter v. Bollinger,
539 U.S. 306 (2003) ........................................ passim
McCreary County v. ACLU,
545 U.S. 844 (2005) ................................................32
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ................................................10
McLaurin v. Oklahoma State Regents,
339 U.S. 637 (1950) ................................................24
Schuette v. Coalition to Defend Affirmative Action,
134 S. Ct. 1623 (2014)............................................33
Sipuel v. Board of Regents,
332 U.S. 631 (1948) ................................................24
Sweatt v. Painter,
339 U.S. 629 (1950) ................................................24
University of California Regents v. Bakke,
438 U.S. 265 (1978) ........................................ 2, 7, 27

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Statutes, Regulations, and Constitutional
Provisions
28 C.F.R. 35.139 .......................................................7
Americans with Disabilities Act,
42 U.S.C.A. 12101 et seq. ......................................7
Public Health Service Act, Title VII, 736,
42 U.S.C. 293 (2011) ...........................................13
Tex. Const. art. VII, 7, 14 (1948) ..........................24
Other Authorities
About the Liaison Committee on Medical Education
(LCME) ...................................................................15
Ad Hoc Survey Team, Report of the Secretariat FactFinding Survey of the University of Nevada School
of Medicine (April 1-3, 2012) .................................15
Ad Hoc Survey Team, Team Report of the Survey of
University of South Alabama College of Medicine
(Moulton Letter) (September 26-29, 2010) ...........16
Ad Hoc Survey Team, Team Report of the Survey of
Wright State University, Boonshoft School of
Medicine (March 22-25, 2009) ...............................16
Adams, Michelle, Stifling the Potential of Grutter v.
Bollinger: Parents Involved in Community Schools
v. Seattle School District No. 1, 88 B.U. L. Rev. 937
(2008) ........................................................................7
Auerbach, Carl A., The Silent Opposition of
Professors and Graduate Students to Preferential
Affirmative Action Programs: 1969 and 1975, 72
Minn. L. Rev. 1233 (1988) .....................................19
Barnhizer, David, A Chilling Discourse, 50 St. Louis
L. J. 361 (2006) ......................................................18

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Belkin, Douglas, Harvard Asian-American Bias
Complaint Dismissed, Wall Street Journal (July 7,
2015) .......................................................................30
Brief Amicus Curiae of California Association of
Scholars et al., in Fisher v. University of Texas, No.
11-345 (filed May 29, 2012) (merits stage) ...........34
Brief Amicus Curiae of the American Bar Association
in Fisher v. Texas, No. 11-345 (filed August 13,
2012) .......................................................................17
Brief Amicus Curiae of the American Bar Association
in Grutter v. Bollinger, No. 02-241 (filed February
19, 2003) .................................................................17
Brief of Amici Curiae UCLA Law Students of Color
in Support of Respondent, Grutter v. Bollinger, No.
02-214 (filed February 18, 2003) ...........................12
College Guide: Hillels Guide to Jewish Life at
College and Universities .......................................25
College Notes: Charleston Law Taps Diversity
Director, The State (Columbia, S.C.) B3 (August
13, 2006) .................................................................18
Daggett, William R., et al., Color in an Optimum
Learning Environment (2008) ...............................23
Espenshade, Thomas & Radford, Alexandria Walton,
No Longer Separate, Not Yet Equal: Race and
Class in Elite College Admission and Campus Life
(2009). .....................................................................29
Fitzpatrick, Brian, The Diversity Lie, 27 Harv. J. L.
& Pub. Poly 385 (2003) ...........................................7
Greenawalt, Kent, The Unresolved Problems of
Reverse Discrimination, 67 Cal. L. Rev. 87 (1979) .8

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Ham, William T., Harvard Student Opinion on the
Jewish Question, The Nation (Sept. 6, 1922)........25
Hammond, James T., Charleston School of Law:
Fails to Win Accreditation So Students Can Take
Bar, The State (Columbia, S.C.) (July 12, 2006) ..17
Harvard Faces Problem of Cutting Down Number of
Students Attending By Refusing Admission to
Jews, North China Star 6 (Aug. 15, 1922) ............25
Heriot, Gail, A Dubious Expediency: How RacePreferential AdmissionsPolicies on Campus Hurt
Minority Students, Special Report No. 167 (August
31, 2015) .................................................................22
Heriot, Gail, Strict Scrutiny, Public Opinion and
Racial Preferences on Campus: Should the Courts
Find a Narrowly Tailored Solution to a Compelling
Need in A Policy Most Americans Oppose?, 40
Harv. J. Legis. 217 (2003) .....................................34
Jones, Jaleesa, Colgate University Students Ask
#CanYouHearUsNow, USA Today (September 24,
2014) .......................................................................12
Karabel, Jerome, The Chosen: The Hidden History of
Admission and Exclusion at Harvard, Yale and
Princeton (2005) ............................................... 26, 28
Kennedy, Randall, Affirmative Reaction, Am.
Prospect (March 1, 2003) .........................................8
Kirschner, Paul A., et al., Why Minimal Guidance
During Instruction Does Not Work: An Analysis of
the Failure of Constructivist, Discovery, ProblemBased, Experiential, and Inquiry-Based Teaching,
41 Educ. Psychologist 75 (2006) ............................23

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Marquette Protest on Diversity, University Seal,
Inside Higher Ed (April 28, 2015) .........................12
Miller, G.W. III, Asian Students Under Assault:
Seeking Refuge from School Violence, Philadelphia
Weekly (Sept. 1, 2009) ...........................................30
Nagai, Althea K., Racial and Ethnic Preferences in
Undergraduate Admissions at the University of
Michigan, Center for Equal Opportunity (Oct. 17,
2006) .......................................................................34
Offredo, Joh & Starkey, Jonathan, NAACP, State
Lawmakers: UD is Lacking in Diversity, The News
Journal (Feb. 10, 2015) ..........................................13
Rennert, Leo, President Embraces Minority
Programs, Sacramento Bee (Apr. 7, 1995) ............30
Rhode Island Board of Governors for Higher
Education, Affirmative Action and Equal
OpportunityPolicy and Regulations ..................13
Smith, Daryl G., et al., Building Capacity: A Study
of the Impact of the James Irvine Foundation
Campus Diversity Initiative (May 2006) ...............12
Some Asians College Strategy: Dont Check Asian,
USA Today (Dec. 3, 2011) ......................................29
Synnott, Marcia Graham, A Social History of
Admissions Policies at Harvard, Yale, and
Princeton, 1900-1930 (1974) ..................................25
Synnott, Marcia Graham, The Half-Opened Door:
Discrimination and Admissions at Harvard, Yale,
and Princeton, 1900-1970 (1979) .................... 27, 28
Tomilowitz, Samantha & Hoff, Sam, UCLA Law
Students Protest Lack of Diversity, Daily Bruin
(Feb. 10, 2014)........................................................12

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U.S. Commission on Civil Rights, Affirmative Action
in American Law Schools (2007) (USCCR-AAALS
Report) ................................................ 16, 18, 19, 20
Welch, Susan & Gruhl, John, Affirmative Action in
Minority Enrollments in Medical School and Law
School (1998) .................................................... 14, 24
Wood, Thomas, Who Speaks for Higher Education on
Group Preferences?, 14 Academic Questions 31
(Spring 2001)..........................................................19
Woodward, C. Vann, The Strange Career of Jim
Crow 50 (3d rev. ed. 1974) .....................................24
Rules
Sup. Ct. R. 37.3(a) .......................................................1
Sup. Ct. R. 37.6 ............................................................1

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INTEREST OF AMICUS CURIAE1
The California Association of Scholars (CAS) is
an organization devoted to higher education reform.
An affiliate of the National Association of Scholars
(NAS), it is composed of professors, graduate students, college administrators, trustees and independent scholars committed to rational discourse as the
foundation of academic life in a free and democratic
society. Its board members include Dr. John Ellis
(Chairman), Dr. Matthew Malkan (President), and
Professor Gail Heriot, who provided valuable assistance in the planning of this brief. The CAS believes
that the expertise of its members in higher education
puts it in special position to inform the Court about
some of the issues presented in this case.
SUMMARY OF ARGUMENT
Few, if any, race-preferential admissions policies
are the product of the diversity rationalethe desire
to confer the educational benefits of a diverse student
body on all students. Much more common are those
who advocate race-preferential admissions policies as
a means to achieve social justice. See infra, Part I.
But even that tells only a piece of the story. More
common than any of these ostensibly high-minded mo-

Pursuant to this Courts Rule 37.3(a), all parties have provided


blanket consent to the filing of amicus briefs. Pursuant to Rule
37.6, Amicus Curiae affirms that no counsel for a party authored
this brief in whole or in part, and no such counsel or party made
a monetary contribution intended to fund the preparation or submission of this brief. No person other than the amicus curiae, or
their counsel, made a monetary contribution to its preparation
or submission.
1

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tivations are the little practical ones. When outsidersstate legislators, private foundations, federallyrecognized accrediting agencies, identity-politics organizations, etc.push individual colleges or universities to engage in or expand their race-preferential
policies, the colleges and universities usually succumb
to the pressure. Their reasons do not relate to pedagogy. Practical politics is a better name for it. In the
case of accrediting agencies with the power of the federal government behind them, these institutions have
no choice. See infra, Part II. See also Brief Amicus Curiae of California Association of Scholars et al., in
Fisher v. University of Texas, No. 11-345 (filed October
20, 2011) (cert. stage).
This is a problem for the Respondent and for all
colleges and universities whose policies are not motivated by, or narrowly tailored to fit, the diversity rationale. At least it is supposed to be a problem. The
only purpose that Justice Powell viewed as potentially
permissible in his opinion in University of California
Regents v. Bakke, 438 U.S. 265, 311-14 (1978), was the
diversity rationale. Moreover, it is the only purpose
found to be compelling by the majority in Grutter v.
Bollinger, 539 U.S. 306 (2003). Justice Powell explicitly rejected the social justice rationale in Bakke,
and Grutter never attempted to gainsay that rejection.
The Constitution simply does not permit discrimination in favor of one racial group and against another
in order to even a score. It certainly does not permit
discrimination just to placate state legislators, private
foundations, federally-recognized accrediting agencies or identity-politics organizations.

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One might have expected large numbers of lawsuits challenging race-preferential admissions policies based on pretext. But while Grutter leaves open
the possibility of such challenges, , it doesnt make
them easy, especially as its rationale was interpreted
prior to Fisher v. University of Texas, 133 S. Ct. 2411
(2013) (Fisher I). See, e.g., Fisher v. University of
Texas, 631 F.3d 213 (5th Cir. 2011), vacated and remanded, 133 S. Ct. 2411 (2013).
The difficulty has been with the concept of deference to college and universities on academic matters
even in the face of race discriminationa concept first
developed in Grutter and commonly known as Grutter-deference. Grutter-deference has operated to insulate these policies. Especially given the higher education industrys historical tendency to indulge in race
discrimination more, rather than less, than other industries, Grutter-deference has been a controversial
concept. See infra, Part III (discussing Jewish quotas).
In Grutter, this Court agreed that race-preferential admissions policies must be subjected to strict
scrutiny. But in determining whether the University
of Michigan Law Schools interest in diversity was
compelling, the Court stated that the law schools educational judgment is one to which we defer. 539
U.S., at 328. More importantly for the purposes of this
brief, it deferred on the issue of pretext, stating that
good faith is presumed absent a showing to the
contrary. 539 U.S., at 329 (emphasis added, internal
quotation marks omitted).
Prior to Fisher I, it would have been nearly impossible for a plaintiff to mount a lawsuita very expensive lawsuitthat required her to provide admissible,
institution-specific evidence of pretext at a long and

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drawn out trial. Much of the available evidence is
hearsay or not specific to the particular defendant institution. A plaintiff could have attempted to show
pretext by showing that the policy was simply not tailored to fit the diversity rationale, but even if she had
done a good job at that, Grutter-deference was being
interpreted to require that the courts allow colleges
and universities considerable leeway in designing
their race-preferential policies. In theory, a plaintiff
could have the wherewithal to make it to trial and present enough institution-specific evidence to persuade
a court that, even with Grutter-deference, the defendants policy was not narrowly tailored to the diversity
rationale. But even if she did, she might still face an
uphill battle in seeking permanent relief. If a court
must defer to academic judgment, it arguably must allow the defendant institution the opportunity to modify its policy as many times as necessary to get it right.
See infra, Part I.
Fisher I changed things by clarifying that Grutterdeference does not apply to the narrow tailoring part
of the strict scrutiny analysis. But as the Fifth Circuits opinion below illustrates, it did not solve the
problem of pretext. Despite considerable general evidence that colleges and universities are seldom motivated by the diversity rationale, the Fifth Circuit
failed to approach narrow tailoring with the kind of
seriousness needed, given the likelihood that pretext
plays a decisive role.
More clarification is necessary. That clarification
could take the form of expanding strict scrutiny doctrine to include explicit evidentiary presumptions designed to smoke out pretext more efficiently. If alone
among industries higher education should receive

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Grutter-deference, then alone among industries it
should be subject to explicit counterweights in the
narrow tailoring phase of the analysis. The Court has
a duty to prevent colleges and universities from too
easily claiming the diversity rationale as a pretext
masking their illegitimate racial-preference policies.
See infra, Part IV.
For example, a college or university that has been
bullied by state legislators on this issue should be required to prove by clear and convincing evidence that
the legislators conduct did not influence its policies.
Such a requirement is already implicit in the strict
scrutiny concept of narrow tailoring. But it should be
made explicit. Id.
Note that such a presumption would have the
added virtue of discouraging outside actors from engaging in such pressure. Such an approach could possibly help phase out race-preferential admissions on
the 25-year schedule discussed in Grutter. 539 U.S., at
343 (We expect that 25 years from now, the use of
racial preferences will no longer be necessary).
ARGUMENT
As a counterweight to Grutter-deference, race-preferential admissions policies should be subjected to
tough evidentiary presumptions in the narrow tailoring phase of the analysis. When pretext is a significant possibility, litigants must be given effective tools
to smoke it out.

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I. Prior to Fisher I, Grutter-Deference Was Interpreted To Insulate Colleges and Universities From Liability Despite Strong Evidence
That Concern Over the Pedagogical Benefits
of Diversity Was Often a Pretext.
In Grutter, this Court held that race-preferential
admissions policies must be subjected to strict scrutiny. But in applying that test it stated: The [University of Michigan] Law Schools educational judgment
that such diversity is essential to its educational mission is one to which we defer. 539 U.S., at 328 (emphasis added).
In addition, the Grutter Court was deferential to
the law school on the issue of pretext, stating that
good faith is presumed absent a showing to the
contrary. 539 U.S., at 329 (emphasis added, internal
quotation marks omitted). The law school was thus
freed from proving that its motive was in fact the desire to secure the pedagogical benefits of diversity for
all its students. In the absence of admissible, institution-specific proof to the contrary, it was sufficient
that it said so.
Up to that point, strict scrutiny and deference to a
state institution engaging in race discrimination had
been assumed by many to be incompatible concepts.
Grutter seemed to place universities on a lofty pedestal. Now, alone among institutions that engage in race
discrimination (and despite their disturbing history of
discriminating more than most other institutions
against African Americans, Jewish Americans and

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Asian Americans), their policies were given a strong
presumption of legitimacy.2
Even in 2003, however, it was an open secret that
race-preferential admissions policies were not ordinarily directed to securing the pedagogical benefits of
diversity for all students, but rather were intended to
serve other goals, both large and small. See Brian
Fitzpatrick, The Diversity Lie, 27 Harv. J. L. & Pub.
Poly 385 (2003). Professor Randall Kennedy mentioned an alternative motivation (one already rejected
in Bakke and Grutter) when he stated:
Lets be honest: Many who defend affirmative
action for the sake of diversity are actually
motivated by a concern that is considerably
more compelling. They are not so much animated by a commitment to what is, after all,
It is worth noting that the federal bureaucracy does not appear
to take Grutter-deference seriously in any context other than
race-preferential admissions. For example, U.S. Department of
Education regulations under Title II of the Americans with Disabilities Act, 42 U.S.C.A. 12101 et seq., cut back on the authority of universities to disenroll students who are threatening suicide. Ordinarily, one might expect (given race discriminations
special place in the law) that if deference is due to universities
that engage in race discrimination, at least as much deference
would be due to universities that conclude that a student with a
mental illness is interfering with the education of others. But
that would be incorrect. 28 C.F.R. 35.139. Instead, when an extension of Grutter-deference is argued for, it tends to be for an
expansion of race-preferential treatment into non-academic contexts. See, e.g., Michelle Adams, Stifling the Potential of Grutter
v. Bollinger: Parents Involved in Community Schools v. Seattle
School District No. 1, 88 B.U. L. Rev. 937 (2008) (expressing disappointment that Grutters deferential form of strict scrutiny review had not yet led to a re-examination of the law concerning
race-preferential public contracting).
2

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only a contingent, pedagogical hypothesis. Rather, they are animated by a commitment to social justice.
Randall Kennedy, Affirmative Reaction, Am. Prospect
(March 1, 2003); see also Kent Greenawalt, The Unresolved Problems of Reverse Discrimination, 67 Cal. L.
Rev. 87, 122 (1979) (I have yet to find a professional
academic who believes the primary motivation for
preferential admission has been to promote diversity
in the student body for the better education of all the
students).
But while Grutter in theory left open the possibility
that a plaintiff could make a showing of pretext, in
practice no victim was likely to have the resources to
conduct such a fact-intensive, institution-specific inquiry. Further clarification from the Court on the limits of deference was needed.
The problems were serious. Under Grutter, for example, even if a victim were to prove at trial that a
particular universitys motives were unconstitutional,
permanent relief would not necessarily be forthcoming. Universities are fluid organizations. New faculty
members and administrators are constantly being
added; old ones are retiring. A university whose motives had been proven to be unconstitutional at trial
could easily turn around and claim that it had seen
the light. Its new faculty members and administrators, in the exercise of the vague rights to academic
freedom alluded to in Grutter, could argue that in the
future their reasons for race-preferential admissions
would center on the diversity rationale. If Grutter-deference to academic authority had been interpreted as
broadly as colleges and universities were urging, even

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a crowbar would not have been able to dislodge unconstitutionally-motivated policies.3
Fortunately, then came Fisher I. By clarifying that
Grutter-deference does not apply to strict scrutinys
narrow tailoring requirement, Fisher I held out the
promise that the pretext issue would be taken seriously by the courts.4

In his concurrence in Fisher I, Justice Thomas noted the similarities between Jim Crow-era cases like Brown v. Board of
Educ., 347 U.S. 483 (1954), and this case. Fisher I, 133 S. Ct., at
2424-28. Imagine what the world would look like today if the
Brown Court had (1) deferred to school districts that claimed that
segregated schools were necessary for educational betterment of
all; and (2) had held that in the absence of a showing to the contrary it would presume that these school districts were indeed so
motivated.
3

Carrying the Brown analogy a bit further, Browder v. Gayle,


352 U.S. 903 (1956) (per curiam), may be useful to consider.
Browder came to the Court on the heels of Brown. Brown had
relied on Kenneth and Mamie Clarks famous doll studies to
demonstrate that separate is unequal in the context of education
because it generates a feeling of inferiority as to [black childrens] status in the community. 347 U.S., at 494. But Browder
concerned bus segregation, not school segregation, so Browns
logic did not directly apply. There was good reason to believe that
civil rights advocates would have to construct their argument on
public transportation from the ground up. In an opinion noted for
its extreme brevity, however, the Court held, without explanation, that Brown did apply, thus signaling that it would not entertain case-by-case litigation over whether separate but equal
is equal. Case-by-case litigation is as counterproductive in the
present context as it would have been in the context of Jim Crow.
When it comes to race discrimination, strong and simple prohibitions are the mostand perhaps the onlyeffective remedy.
Prior to Fisher I, there was never a need to patrol the boundary
between the compelling governmental interest and the narrow
tailoring portion of the strict scrutiny test. Indeed, many would
4

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As the Fifth Circuits decision on remand makes
apparent, however, Fisher Is promise has yet to be
fulfilled. The Fifth Circuit clearly needs more guidance, and there is no reason to suspect that other federal and state courts will not also require additional
guidance in this area of the law. One way to provide
that guidance is through explicit evidentiary presumptions, shifting the burden of proof to defendants
upon specific showings. Such presumptions can be designed to function as counterweights to Grutter-deference.5 See infra, Part IV.

have scoffed at the notion that a distinct boundary was possible.


Fisher Is dual approach allowing deference on the issue of compelling purpose, but declining to give deference in the area of
narrow tailoring, creates the need to make a sharp distinction.
Consider, for example, the different ways in which the Grutter
Court could have articulated the compelling interest it found:
Might the University of Michigan Law School have persuaded
the Court that it had a broad compelling interest in ensuring that
its students are exposed to new and different ideas and experiences? Or might it have persuaded the Court that it had a narrow
compelling interest in securing for each of its classrooms the educational benefits of having at least 20% of its students from under-represented racial minorities? If it had done the former, the
narrow-tailoring part of the analysis would have necessarily
been very broad-ranging. If it had done the latter, the narrowtailoring part of the analysis would have to be much more limited. It is thus worth pointing out what the Grutter Court actually identified as the compelling interest: It was the educational
benefits that flow from a diverse student body. Such a purpose
is fairly abstract and hence moves most of the analysis to narrow
tailoring.
Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
(providing appropriate structure to the problem of proof of discriminatory intent in employment discrimination cases). Note
that the strict scrutiny doctrine is itself essentially a set of presumptions built on the recognition that race discrimination
5

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II. Because Much of the Pressure for Race-Preferential Admissions Policies Comes From
Outside Colleges and Universities, Those Policies Should Not Be Entitled To Deference.
A. State legislatures, the federal government, private foundations, alumni donors
and student groups motivated by their
own view of social justice or by an oldfashioned racial spoils system are among
those who vie to influence admissions policies.
In Grutter, it was [t]he Law Schools educational
judgment that such diversity is essential to its educational mission that received deference. Grutter, 539
U.S., at 332 (emphasis added). The double use of the
word educational shows the Court intended to emphasize that deference is available only for true academic judgments rather than mere political ones. Academic judgments are made by academic faculties
based on academic considerations. They are not made
by outsiders to the academic enterprise or by those
bowing to pressure from outsiders.
Real educational judgment is seldom the driving
force behind race-preferential admissions policies,
however. For example, private foundations are often
eager to expand opportunities for certain (but not
other) under-represented racial or ethnic groups in
even when it is well-meaningis almost never in the public interest. The CAS respectfully requests the Court to consider the
possibility that special tools may be necessary and proper in this
situation, too.

12
higher education. Knowing full well that this will be
accomplished through race-preferential admissions
policies that disadvantage Asian American and white
groups, they offer diversity grants to colleges and
universities that promise to diversify their student
bodies. Colleges and universities, ever-alert to the
need for fund-raising, jump at the chance. See, e.g.,
Daryl Smith, Building Capacity: A Study of the Impact of the James Irvine Foundation Campus Diversity
Initiative (May 2006).
Students groups are eager for influence, too. The
fact that they frequently take an interest in race-preferential admissions policies is aptly illustrated by
their amicus curiae briefs. See, e.g., Brief of Amici Curiae UCLA Law Students of Color in Support of Respondent, Grutter v. Bollinger, No. 02-214 (filed February 18, 2003) (arguing that the government is permitted to reverse the harm caused by previous destructive discriminatory acts). Their interest takes
many forms, but the substantive focus is overwhelmingly on their view of social justice, not on pedagogy.
See Marquette Protest on Diversity, University Seal,
Inside Higher Ed (April 28, 2015); Jaleesa Jones, Colgate University Students Ask #CanYouHearUsNow,
USA Today (September 24, 2014); Samantha
Tomilowitz & Sam Hoff, UCLA Law Students Protest
Lack of Diversity, Daily Bruin (Feb. 10, 2014).
Sometimes it is state legislatures or other state
agencies that try to influence admissions policy. For
example, only a few months ago, the Delaware General Assembly held a budget hearing at which a member called the University of Delawares diversity record disappointing or discouraging. Another mem-

13
ber said that the University must work harder to remedy the situation. See Jon Offredo & Jonathan
Starkey, NAACP, State Lawmakers: UD is Lacking in
Diversity, The News Journal (Feb. 10, 2015). It is
worth noting that in Rhode Island, it is the governorappointed Board of Governors for Higher Education
(recently merged into the Board of Education) that
has long imposed affirmative action requirements on
Rhode Island public colleges and universities. See
Rhode Island Board of Governors for Higher Education, Affirmative Action and Equal OpportunityPolicy and Regulations.6 Whether they are motivated by
racial spoils or by their view of social justice is not important. It is unlikely they are motivated by a desire
for good pedagogy and in any event are not expert in
pedagogy.
The federal government pressures colleges and
universities through various mechanisms as well.
Among them is the one established by the Public
Health Service Act, Title VII, 736, 42 U.S.C. 293
(2011), which funds programs in health professions
education. HHS allocates funds to schools of medicine,
dentistry, pharmacy, and graduate programs in behavioral or mental health in part on the basis of
whether these schools have a significant number of
URM [under-represented minority] students enrolled.
None of these organizations or governmental entities are entitled to Grutter-deference. It is highly unlikely that the Grutter Court would have deferred to a
college or universitys political goals or budgetary
Available at http://www.ribghe.org/affirmativeactionpolicy.pdf
(all URLs last visited September 7, 2015).
6

14
judgment that it must cater to them. Nor should future courts.
B. Federally-designated accrediting agencies are especially inclined toward pressuring individual colleges and universities toward greater racial preferences.
In the academic world, accrediting agencies are
frequently the most active enforcers of diversity. In
the 1990s, fully 31% of law schools and 24% of medical
schools admitted to political scientists Susan Welch
and John Gruhl that they felt pressure to take race
into account in making admissions decisions from
accreditation agencies. See Susan Welch & John
Gruhl, Affirmative Action in Minority Enrollments in
Medical School and Law School 80 (1998).7
When accreditors speak, the institutions they govern must listen. As the U.S. Department of Educations designated accreditation agencies, the Council
of the American Bar Associations Section on Legal
Education and Admissions to the Bar (ABA) and the
Liaison Committee on Medical Education (LCME)
decide whether a school will be eligible for federal
funding, including funding for student loans. Effectively, these accreditors are the federal government.
Note that neither the ABA nor LCME is an academic institution itself. LCME, for example, describes
itself as consisting of medical educators and administrators, practicing physicians, public members and
Indeed, respondents volunteered the information. They were
asked if they had felt pressure from sources other than the federal and state governments. If they answered yes, they were
asked to specify which groups.
7

15
medical students. See About the Liaison Committee
on Medical Education (LCME).8 More importantly,
neither is itself a college or university. If centralizing
forces like the ABA and LCME are given their own
academic freedom, they have the power to destroy
the academic freedom of individual college and universities in those situations where academic freedom
and judgment is truly appropriate.
There is evidence that the pressure from accreditors to increase diversity is growing (and no evidence
of which the CAS is aware to the contrary). The CAS,
in cooperation with the NAS, recently conducted a
round of state public records requests of state medical
schools. Out of the sixteen schools that have responded or partially responded as of this writing, half
have been cited for problems with diversity. At the
University of Nevada Medical School at Reno, for example, the 2009 Survey Team found that the numbers of students and faculty of diverse backgrounds
have been consistently low, and the 2012 Survey
Team found the school to be noncompliant with diversity accreditation standards.9 Similarly, the 2009
Survey Team for Wright State University School of
Medicine reported:
Diversity of the student body has been somewhat problematic. There has been a steady de-

Available at http://www.lcme.org/about.htm.

Ad Hoc Survey Team, Report of the Secretariat Fact-Finding


Survey of the University of Nevada School of Medicine 4, 9 (April
1-3, 2012). The various LCME survey team reports cited herein
are available at https://www.nas.org/images/documents/ LCME_
FOIA_Documents.pdf.
9

16
cline in the number of African-American student applicants and students from 309 applicants in 2001 to 241 in 2007, and from 50 total
African-American students in 2001 to 32 in
2007. At the same time there are no Hispanic
students. The number of Asian students has increased .10
As a result, the accreditor classified Wright States diversity as an area of transition, whose outcome could
affect the schools ongoing compliance with accreditation standards.11
At the University of South Alabama College of
Medicine, the accreditor named diversity as an area of
partial or substantial noncompliance, finding that
[d]iversity among faculty and students has not increased notably in the past seven years.12
Like LCME, the ABA requires law schools to
demonstrate their commitment to diversity. Not long
after Grutter, the ABA ramped up its requirements for
diversity, apparently in the mistaken belief that Grutter empowered it rather than actual law schools.13 In
Ad Hoc Survey Team, Team Report of the Survey of Wright
State University, Boonshoft School of Medicine 38 (March 22-25,
2009).
10

11

Id., at 2-3 (Hopkins Letter).

Ad Hoc Survey Team, Team Report of the Survey of University


of South Alabama College of Medicine 2 (Moulton Letter) (September 26-29, 2010).
12

These changes were a significant focus of discussion in a report


by the U.S. Commission on Civil Rights. See U.S. Commission on
Civil Rights, Affirmative Action in American Law Schools at 90137, 175-80 (2007) (USCCR-AAALS Report), available at
http://www.usccr.gov/pubs/AALSreport.pdf.
13

17
essence, the ABA enforces a diversity cartel among
law schools, effectively insulating schools that give
large preferences from competition on issues like bar
passage rate with schools that would rather give
smaller preferences or none at all.
The ABA is fully aware that the only way to comply
with its standards is to give preferential treatment to
students from under-represented minorities. In its
amicus brief in Grutter, it told the Court that [r]aceconscious admissions are essential to increasing minority representation in the legal system. [I]t is unquestionable, the ABA wrote, that the improvement
in minority participation has been achieved largely
by the use of race-conscious admissions policies such
as those under attack here. Brief Amicus Curiae of
the American Bar Association in Grutter v. Bollinger,
No. 02-241 at 18-21 (filed February 19, 2003) (capitalized standardized). Nine years later, it took the same
position in its amicus curiae brief in Fisher I. Brief
Amicus Curiae of the American Bar Association in
Fisher v. Texas, No. 11-345 at 20-29 (filed August 13,
2012) (Race-conscious admissions policies are essential to increasing minority representation in the legal
profession) (original in all capitals).
Moreover, the ABA has not hesitated to overrule
the educational judgment of the law schools it regulates. In 2006, for example, the Charleston School of
Law unexpectedly failed to win accreditation from the
ABA after a favorable recommendation from its Accreditation Committee. According to news reports, the
ABAs concerns focused in part on race. See James T.
Hammond, Charleston School of Law: Fails to Win Accreditation So Students Can Take Bar, The State (Columbia, S.C.) (July 12, 2006). Final accreditation was

18
not awarded until the dean had declared that [w]hatever we have to do [to win accreditation], well do it
and a new director of diversity was publicly announced. Id.; College Notes: Charleston Law Taps Diversity Director, The State (Columbia, S.C.) B3 (August 13, 2006); see also David Barnhizer, A Chilling
Discourse, 50 St. Louis L. J. 361 (2006) (describing
ABA influence on faculty diversity-hiring).
The case of George Mason University School of
Law is particularly troubling. Its story began with the
ABAs site evaluation team visit in 2000. The siteevaluation team was unhappy that only 6.5 percent of
entering day students and 9.5 percent of entering
evening students were minorities. U.S. Commission
on Civil Rights, Affirmative Action in American Law
Schools at 181 (2007) (USCCR-AAALS Report).
Nobody could argue that GMUs problem was lack
of outreach. Even the site evaluation report conceded
that GMU had a very active effort to recruit minorities. Indeed, it described those efforts at length. It
noted, however, that GMU had been unwilling to engage in any significant preferential affirmative action
admissions program. Since most law schools were
willing to admit minority students with dramatically
lower academic credentials, GMU was at a recruitment disadvantage. Id., at 182.
GMUs faculty members did not all have the same
views on affirmative action. Some members considered even small admissions preferences to be morally
repugnant; others believed they would hurt rather
than help their intended beneficiaries. But some were
willing to put a slight thumb on the scale in favor of
African Americans and Hispanics. What set GMU

19
apart from many laws schools was that a strong majority opposed the overwhelming preferential treatment commonly practiced elsewhere.14 The site-evaluation report noted its serious concerns with GMUs
policy. Id.
Over the next few years, the ABA repeatedly refused to renew GMUs accreditation, citing its lack of
a significant preferential affirmative action program
and supposed lack of diversity. Back and forth the negotiations went. Although GMU could and did step up
its already-extensive recruitment efforts, it was forced
to back away from its opposition to significant preferential treatment. It was thus able to raise the proportion of minorities in its entering class to 10.98 percent
in 2001 and 16.16 percent in 2002. Id., at 183.
None of this was enough. The ABA didnt want
slow, deliberate movement in its direction; it wanted
utter capitulation. Shortly after the Courts decision
in Grutter, an emboldened ABA summoned the GMU
president and the law school dean to appear personally before it and threatened the institution with revocation of its accreditation on account of its alleged diversity problem. GMU responded by further lowering
minority admissions standards and expanding resources devoted to diversity, all in hopes of soothing

The number of academics who share their views is much


greater than many suppose. See, e.g., Carl A. Auerbach, The Silent Opposition of Professors and Graduate Students to Preferential Affirmative Action Programs: 1969 and 1975, 72 Minn. L.
Rev. 1233 (1988); Thomas Wood, Who Speaks for Higher Education on Group Preferences?, 14 Academic Questions 31 (Spring
2001).
14

20
the ABAs wrath. As a result, 17.3 percent of its entering students were minority members in 2003 and 19
percent in 2004. USCCR-AAALS Report at 183.
Still the ABA was not satisfied. This time their focus was on African-American students specifically.
Of the 99 minority students in 2003, only 23 were African-American; of 111 minority students in 2004, the
number of African Americans held at 23, the ABA
complained. It didnt seem to matter that sixty-three
African Americans had been offered admission or that
the only way to admit more was to lower admissions
standards to alarming levels. It didnt even matter
that many students admitted under those circumstances would incur heavy debt, but never graduate
and pass the bar. GMUs skepticism about racial preferences was heresy, and the ABA was determined to
stamp it out. Id., at 184.
GMU finally got its re-accreditation after six long
years of abusejust in time for the next round in the
seven-year re-accreditation process. Id. Sure enough,
the ABAs 2007 site evaluation team report again
raised concerns that GMU was not in compliance with
ABA diversity standards.
Meanwhile, an important question was not being
asked: What happened to the minority students who
were admitted in the first round against the GMU facultys better judgment? The ABA was apparently not
so interested in that. The ABA was not making an educational judgment about pedagogy; it was preening
itself in an effort to show its highly superficial concern
for social justice.

21
But GMUs dean, Daniel D. Polsby, was very interested in the fate of his students. In a letter dated January 3, 2008 to Hulet H. Askew, the ABA Consultant
on Legal Education (the Polsby Letter),15 responding
to the ABAs 2007 site evaluation report, Dean Polsby
patiently explained the damage inflicted by the ABAs
enforcement of diversity standards.
As the ABA failed to recognize, when students attend a school at which their entering academic credentials are well below those of their peers, they will usually earn grades to match. During the period from
2003 to 2005, while GMU was under pressure to increase its racial diversity, African-American students
experienced dramatically higher rates of academic
failure (defined in GMUs academic rules as a GPA below 2.15). Fully 45% of African-American law students at GMU experienced academic failure as opposed to only 4% of students of other races.
Dean Polsby put the problem plainly: We have an
obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail.
Polsby Letter at 14.
Part of the tragedy, of course, is that the empirical
evidence indicates that many of these students would
have stood a greater chance at success in their goal of
becoming lawyers if they had attended a law school at
which their entering academic credentials had been
more like the median students. See Gail Heriot, A

Available at http://www.newamericancivilrightsproject.org/
wp-content/uploads/2014/05/Response-to-ABA-Site-Visit-Report
-2.pdf
15

22
Dubious Expediency: How Race-Preferential AdmissionsPolicies on Campus Hurt Minority Students,
Special Report No. 167 (August 31, 2015).16 But the
ABA prevented that.
In sum, the evidence is very strong that colleges
and universities resort to race preferences for a variety of reasons, and at the very least, many of those
reasons have little to do with the educational value of
diversity. Yet under Grutter, proving pretext has been
made more difficult than it should be. By clarifying
that deference has no place in narrow tailoring analysis, Fisher I gave litigants hope the problem can be
made manageable. But actually making it so will require making the steps in its narrow tailoring analysis more explicit. As a counterweight to Grutter-deference, colleges and universities need to know the circumstances under which their assertion of the diversity rationale will be deemed pretextual. This can be
accomplished through a series of explicit evidentiary
presumptions as described in Part IV.
III. The Higher Education Industry Is An Unlikely Recipient of Deference On Issues of
Race. Instead, Higher Educations Long History of Race Discrimination Combined with
Its Modern Tendency Toward Marching In
Lockstep Should Counsel Extra Judicial
Caution.

Available at http://www.heritage.org/research/reports/2015/
08/a-dubious-expediency-how-race-preferential-admissions-policies-on-campus-hurt-minority-students.
16

23
If further reasons to provide counterweights to
Grutter-deference are needed, they can be found in the
higher education industrys history and structure. Educationparticularly higher education differs from
more typical enterprises in at least two important
ways. First, the quality of its services is difficult to
measure. Second, in part because its benefits are believed to extend beyond students, it is heavily subsidized by government and charitable foundations. This
renders it somewhat insulated from both competition
and criticism and vulnerable to demands for various
kinds of patronage.
As a consequence of these structural factors, education is prone to fadssome of which can become
deeply rooted. Some are relatively harmless. See, e.g.,
William R. Daggett, et al., Color in an Optimum
Learning Environment (2008) (recommending that
mathematics classrooms be painted indigo or blue and
that social studies classrooms be painted orange,
green or brown). Sometimes, however, they can have
seriously harmful effects. See, e.g., Paul A. Kirschner,
et al., Why Minimal Guidance During Instruction
Does Not Work: An Analysis of the Failure of Constructivist, Discovery, Problem-Based, Experiential, and Inquiry-Based Teaching, 41 Educ. Psychologist 75
(2006) (recounting the extreme popularity over the
last half century of pedagogical methods that emphasize unguided or minimally-guided student learning
and discussing the evidence that, at least for students
without considerable prior knowledge, these methods
are less effective than more guided learning).
Over their history, colleges and universities have
often fallen prey to fashionable race discrimination.
See McLaurin v. Oklahoma State Regents, 339 U.S.

24
637 (1950); Sipuel v. Board of Regents, 332 U.S. 631
(1948) (per curiam). Consequently, they are unlikely
candidates to receive special deference on matters of
race. Cf. Gary Becker, The Economics of Discrimination (1971) (arguing that institutions that are protected from competition, like government and government-protected monopolies, are more likely to engage
in racial discrimination than institutions that are subject to more direct market pressure).
Sometimes the pressure for race discrimination
has come from the outside. For example, before 1950,
the University of Texas was subject to the Texas Constitutions racial segregation requirement in education, and probably could not have integrated its classrooms had it wanted to. See Tex. Const. art. VII, 7,
14 (1948); Sweatt v. Painter, 339 U.S. 629, 631, n.1
(1950); see also C. Vann Woodward, The Strange Career of Jim Crow 50 (3d rev. ed. 1974) (suggesting that
the push for Jim Crow segregation came largely from
poor Southern whites who used their political clout to
disadvantage their black economic and social competitors); Welch & Gruhl, at 80 (demonstrating that modern law and medical schools often view themselves as
pressured to engage in race-preferential admissions).
Sometimes, however, the pressure for racial discrimination has come from within the elite academy
and from its students and alumni. Consider, for example, the Jewish quotas that swept the Ivy League beginning in the 1920s. What evidence there is strongly
suggests that these policies reflected the prejudices
and resentments of elites rather than of ordinary
Americans. Boston Mayor James Curley, an official
known for his common touch, vehemently opposed
Jewish quotas. Referring specifically to the case of

25
Harvard, he declared: If the Jew is barred today, the
Italian will be tomorrow, then the Spaniard and the
Pole, and at some future date the Irish. See Marcia
Graham Synnott, A Social History of Admissions Policies at Harvard, Yale, and Princeton, 1900-1930, at
357-58, 365-66 (1974) (Social History).17
It was well-educated Americans, not Mayor
Curleys boisterous blue-collar supporters, who had
the greatest incentive to resent the extraordinary success that Jewish students were having (and continue
to have) in higher education. Jews were less than 4%
of the American population in 1920. But by that time,
Columbia Universitys entering class may have been
as much as 40% Jewish, and the University of Pennsylvanias was similar.18 Jerome Karabel, The Chosen: The Hidden History of Admission and Exclusion

Similarly, Samuel Gompers condemned Jewish quotas on behalf of the American Federal of Federation of Labor. Social History, at 358. Indeed, newspapers and magazines from as far away
as China carried critical stories. As an article in The Nation put
it:
17

To tell a Cohen, whose average on the college board examination was 90, that he cannot enter because there are
too many Jews already, while a grade of 68 will pass a
Murphy, or one of 62 a Morgan, hardly seems in line with
the real interests of the college.
William T. Ham, Harvard Student Opinion on the Jewish Question, The Nation 226-27 (Sept. 6, 1922); see also Harvard Faces
Problem of Cutting Down Number of Students Attending By Refusing Admission to Jews, North China Star 6 (Aug. 15, 1922);
Down Hill from Harvard to Lowell, Boston Telegram (June 6,
1922) (cited in Social History at 356-58, 365-66).
For more recent estimates, see College Guide: Hillels Guide to
Jewish Life at College and Universities (estimating Harvards
18

26
at Harvard, Yale and Princeton 86-88 (2005) (Karabel). Within a few years, Harvards entering class
was 27.6% Jewish, and Yales enrollment was 13.3%.
Id., at 105, 114. Most of these students were from families that had only recently come to America, making
their accomplishment all the more impressive.
The resentment against Jewish students was by no
means always subtle. To some Ivy Leaguers, these
new immigrants and their offspring were upstarts,
grinds or even greasy grinds, all-too-eager to replace
the established elite. One Harvard alumnus, writing
to Harvard president A. Lawrence Lowell, was openly
contemptuous:
Naturally, after twenty-five years, one expects
to find many changes but to find that ones University had become so Hebrewized was a
fea[r]ful shock. There were Jews to the right of
me, Jews to the left of me, in fact they were so
obviously everywhere that instead of leaving
the Yard with pleasant memories of the past I
left with a feeling of utter disgust ....
Karabel, at 105 (quoting Dec. 17, 1925 letter).
At the time, Lowell was also the vice president of
the Immigration Restriction League, an organization
steeped in that eras scientific racism. He was determined to do something about what he called the Hebrew problem at Harvard, and argued it affected both
student recruitment and alumni fundraising:

undergraduate population to be about 25% Jewish and Yales undergraduate population to be about 27%), available at
http://www.hillel.org/college-guide/search#.

27
The summer hotel that is ruined by admitting
Jews meets its fate, not because the Jews it admits are of bad character, but because they
drive away the Gentiles, and then after the
Gentiles have left, they leave also. This happened to a friend of mine with a school in New
York, who thought, on principle, that he ought
to admit Jews, but who discovered in a few
years that he had no school at all.
Id., at 88 (quoting May 19, 1922 Lowell letter to William Hocking).
Lowell originally wanted to deal with the issue by
publically adopting a ceiling on Jewish enrollment.
But when the faculty initially balked, he put forth a
more subtle plan. To prevent a dangerous increase in
the proportion of Jews, he insisted that future admissions should be based on a personal estimate of character on the part of the Admission authorities. Marcia Graham Synnott, The Half-Opened Door: Discrimination and Admissions at Harvard, Yale, and Princeton, 1900-1970, at 108 (1979) (Half-Opened Door).19
At Lowells behest, therefore, Harvard adopted
such an exclusionary admissions process in 1926.
Shortly thereafter, Yales Dean Clarence Mendell paid
a visit to Harvards admissions director. He reported
that Harvard was now going to limit the Freshman
Class to 1,000 .... They are also going to reduce their
25% Hebrew total to 15% or less by simply rejecting
In Bakke, Justice Powell wrote favorably of Harvards
longstanding efforts for geographical diversity. He was apparently unaware that the policy was part of the effort to limit the
numbers of Jewish students, who tended to be concentrated in
Northeastern urban centers.
19

28
without detailed explanation. They are giving no details to any candidate any longer. See id., at 109.20
It took decades for Ivy League schools to climb out
of the pit they had dug for themselves. Part of what
allowed them to do so was good old-fashioned competition from upstart universities that refused to discriminate. One of the best examples of a university
willing to buck the trend was the University of Chicago, which was then a relatively young institution,
having been founded in 1890. At the time, few would
have regarded the University of Chicago as the leading university it is today. It did not have the warm
patina of age that Harvard (founded 1636) had. But it
rejected the notion that a university could have too
many Jews. It wanted the best students it could get.

The situation was not quite the same for blacks. Harvard, for
example, takes pride in its reputation for relative openness to
blacks, and all things considered, it did indeed have a better record than most institutions of the period. It was a record that was
tarnished by Lowell, who segregated living and dining facilities
over the objections of many alumni. On the other hand, at Princeton, perhaps the least friendly of the Ivies to racial minorities,
not a single black attended in the 20th century until 1945, and
at least one was actively discouraged from enrolling. Still, even
at Princeton, blacks occasionally attended in the 18th and 19th
centuries. See Half-Opened Door at 47-53, 80-84; Karabel at 228,
232-36. Ivy Leaguers did not imagine that black students would
come to dominate business and industry. Even at Harvard, their
numbers were small, perhaps as few as 165 total between 1871
and 1941. Id. Alumni felt no reason to worry, consciously or unconsciously, that blacks would crowd their offspring out of elite
status. Black students were curiosities. Any old guard is likely
at its worst when its members perceive that a group of newcomers may come to take a take a significant share of the benefits
that its elite institutions can confer. The group that presented
that challenge at the time was Jews, not blacks.
20

29
Eighty-nine Nobel prizes later, it is now regarded as
one of the nations finest universities.
History repeats itselfwith a crucial difference:
Now federally-recognized accreditors make it harder
for upstart universities to resist fashionable nonsense. Today the problem on some campuses is not
just too many whites, but too many Asians. Asians
are perceived as the new upstart students at highly
competitive universities. One extensive study of admissions at elite private colleges found Asian applicants with perfect SAT scores of 1600 had the same
chances of being accepted as white applicants with
1460s and African-American applicants with 1150s.
Thomas Espenshade & Alexandria Walton Radford,
No Longer Separate, Not Yet Equal: Race and Class
in Elite College Admission and Campus Life (2009).
The authors caution that this research does not purport to reveal the reason for this, since the data did
not include so-called soft variables like extracurricular activities and teacher recommendations. But, in
part as a response to Espenshades findings, Asian
students are now urged not to list themselves as Asian
on their admissions applications to elite institutions.
Some Asians College Strategy: Dont Check Asian,
USA Today (Dec. 3, 2011). There is a clear message
being sent to Asian-American students: America is
not the nation it purports to be.
On May 15, 2015, more than 60 Asian-American
organizations filed a complaint with the U.S. Department of Educations Office for Civil Rights alleging
that Harvard University is engaged in a pattern of
race discrimination against Asian-American applicants. On June 3, 2015, the Department dismissed the
complaint, apparently on the ground that a lawsuit

30
had been initiated by individuals sponsored by a different organization against Harvard on a similar
ground. See Douglas Belkin, Harvard Asian-American
Bias Complaint Dismissed, Wall Street Journal (July
7, 2015).
The CAS is not arguing that college administrators
bear ill-will toward Asians (or towards Scots-Irish,
Cajuns, Hmong, or any other under-represented
group that is ignored by fashionable diversity policies). While outright malice against Asians is not as
unknown as it should be, see G.W. Miller III, Asian
Students Under Assault: Seeking Refuge from School
Violence, Philadelphia Weekly (Sept. 1, 2009), it is
thankfully rare as a motivation for college administrators. Instead, there is simply a failure of empathy. As
President William Clinton (mistakenly) has put it,
[Without race-preferential admissions], there are
universities in California that could fill their entire
freshman classes with nothing but Asians. Leo Rennert, President Embraces Minority Programs, Sacramento Bee (Apr. 7, 1995).
Higher education has historically been more prone
to race discrimination than other industries rather
than less so. Moreover, the centralizing force of federal subsidies enforced through federally recognized
accrediting agencies threatens to aggravate the problem. The Constitution and its command of Equal Protection should not be and is not oblivious to this.

31
IV. If Alone Among Industries Higher Education
Should Receive Grutter-Deference, Then
Alone Among Industries It Should Be Subject
to Explicit Counterweights In the Narrow
Tailoring Phase Of The Analysis In Order To
Prevent the Diversity Rationale From Being
Too Easily Used As a Pretext.
A. Those institutions that use the diversity
rationale as a pretext should be not given
a second chance to conform themselves to
the constitutions mandate.
In some ways the narrow tailoring analysis is easy.
The fact that diversity policies always focus at least in
substantial part on under-represented minority
groups should be enough to prove that they are not
really based on the diversity rationale. If they were, it
would not matter whether a racial group is under-represented or over-represented. What would matter is
whether a group is tiny (and hence unlikely to have
effective voice). If a racial group makes up, for example, 30% of the population, but only 15% of students,
it is still hard to argue that racial preferences are
needed to amplify their voice. On the other hand, a
racial group that is % of the population, but % of
students might have a stronger argument for diversity preferences, even though it is in fact over-represented.
Put differently, if the pedagogical benefits of diversity mattered to universities, they would be beating
the bushes for groups like Armenian Americans, Burmese Americans, Menominees, and Russian Jewish
emigres. The fact that race-preferential admissions

32
policies target racial groups who are large enough to
have significant political clout proves that it is not just
about diversity or even just about disadvantage. The
policies are not tailored to diversity at all, much less
narrowly tailored to it.
A public college or university that has been found
to be using the diversity rationale as a pretext is acting unconstitutionally. Once it has been found to be
doing so, it should not be permitted to simply turn
around and change its policy to fit the diversity rationale. Instead, it should be made clear to all that its
motives will be regarded as tainted indefinitely. Cf.
McCreary County v. ACLU, 545 U.S. 844 (2005). In the
absence of overwhelming evidence to the contrary,
once its policy has been found insufficiently tailored to
the diversity rationale, any admissions policy it
adopts that is not race neutral should be presumed
pretextual.
B. Those institutions that have been pressured or given incentives to engage in
race-preferential
admissions
policies
should bear the burden of proving by
clear and convincing evidence that they
would have tailored their admissions
standards in exactly the same way even in
the absence of that pressure or incentive.
In its petition-stage Fisher I amicus brief and in
this brief, supra, Part II, CAS has shown that Grutterdeference is not due to schools that have been pressured or given incentives to adopt race-preferential
admissions policies (or to increase the level of prefer-

33
ence in their policies). That limitation on Grutter-deference can be made operational through the narrow
tailoring phase of the analysis by way of explicit presumptions. For example:
(1) An institution that is pressured or given an incentive by a governmental authority (including
a federally recognized accrediting agency) on
matters relating to the racial composition of its
class should be presumed to have been influenced by that authority and thus required to
prove by clear and convincing evidence that its
race-preferential admissions policies were not
in any way more preferential than they would
have been in the absence of that pressure.
(2) An institution that applies for or receives a
benefit from a foundation in which information
on the racial composition of its class is requested or taken into consideration in deciding
on the institutions eligibility for the benefit
should be presumed to have been influenced by
the grantor and thus required to prove by clear
and convincing evidence that its race-preferential admissions policy were not in any way
more preferential than they would have been
in the absence of that pressure.
These presumptions are implicit in the meaning of
strict scrutiny (just as strict scrutiny is implicit in the
text, structure and history or the Equal Protection
Clause of the Fourteenth Amendment). They should
be made explicit. Making them so will give guidance
in an area where guidance is very much needed. See
Schuette v. Coalition to Defend Affirmative Action, 134
S. Ct. 1623 (2014) (a decision that suggests that respondent universities could benefit from additional

34
guidance in the area of race-preferential admissions
policies).21
In Grutter, the Court stated: We expect that 25
years from now, the use of racial preferences will no
longer be necessary to further the interest approved
today. Grutter, 539 U.S., at 343. In a few months,
around the time oral argument in this case is being
held, we will be halfway to that deadline. Instead of
progressing toward that goal, the evidence suggests
that we may be regressing. See Althea K. Nagai, Racial and Ethnic Preferences in Undergraduate Admissions at the University of Michigan, Center for Equal

If the Court is disinclined to provide explicit evidentiary presumptions as counterweights to Grutter-deference, it should consider overruling Grutter-deference (and hence Grutter) entirely.
Without Grutter-deference, no university could have carried its
burden demonstrate a compelling governmental interest. Among
other reasons, it is difficult to see how an interest can be constitutionally compelling if most members of the public do not see
it even as convincing. Since the presumption should always be in
favor of race neutrality and against race discrimination, a controversial application of race discrimination should be an unconstitutional one. See Gail Heriot, Strict Scrutiny, Public Opinion
and Racial Preferences on Campus: Should the Courts Find a
Narrowly Tailored Solution to a Compelling Need in A Policy
Most Americans Oppose?, 40 Harv. J. Legis. 217 (2003) (arguing
that deference to a public preference for race neutrality is both
appropriate and implicit in the doctrine of strict scrutiny, while
a public or governmental preference for race discrimination is
entitled to no weight whatsoever). Objective tests like this one
prevent the placement of too much discretion in the hands of the
judiciary to approve race discrimination. See Brief Amicus Curiae of California Association of Scholars et al., in Fisher v. University of Texas, No. 11-345 (filed May 29, 2012) (merits stage).
21

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Opportunity (Oct. 17, 2006);22 see also Part IIA, supra. One salutary by-product of making these presumptions explicit is that it will almost certainly discourage outsiders from attempting to influence admissions policies in the first place. That in turn could put
colleges and universities on the road to winding down
these preferences.
CONCLUSION
To stop a train going downgrade, sometimes one
needs to do more than simply apply the brakes. The
ability to divert the train to a track with a flat or upward gradient can be of decisive importance. The
kinds of counterweight presumptions that the CAS
has suggested in this brief would help stop the higher
education train as it speeds on the wrong track toward
a twenty-fifth anniversary of Grutter marked by a permanent racial spoils system. They would instead help
put the train back on the right track, moving toward
the day when our nations children will be truly
judged on their merits, by the content of their character and not the color of their skin.

Available at http://www.ceousa.org/attachments/article/548/
UM_UGRAD_final.pdf.
22

36
Respectfully submitted,
JOHN C. EASTMAN
Counsel of Record
ANTHONY T. CASO
CRISTEN A. WOHLGEMUTH
Center for Constitutional
Jurisprudence
c/o Chapman University
Fowler School of Law
One University Drive
Orange, CA 92886
(877) 855-3330
jeastman@chapman.edu
Counsel for Amicus Curiae
California Association of Scholars
DATED: September 2015